News Stories

Jan 16, 2014

Is there a difference between cohabiting and being married? YES!

The numbers of people getting married has reduced significantly over recent years with more people choosing to cohabit instead. However, there is a misconception that cohabiting for a prolonged period of time creates a common law marriage and similar legal rights as married couples. This is not correct. There are significant differences in the law, including on issues such as: pensions, maintenance and parental responsibility.

Owning a Property Together

If you are purchasing a house you can own that property as tenants in common, which means that you each own 50% and the other person does not automatically inherit your share. Alternatively, the property can be held as joint tenants. Joint tenants means the percentages are not crystallised and there is automatic inheritance in the event of death.

You will therefore need to think about which best suits your situation and you may wish to enter into a Declaration of Trust. This is a document that outlines what would happen to the net proceeds of sale if the property were sold.

Parental Responsibility

“Parental Responsibility” is defined as all the rights and duties that you would expect a parent to have in respect of a child, this principally concerns major decisions in a child’s life, such as where they live, who they see, what school they attend, what operations they have, what religion they are etc.

With unmarried parents, the unmarried Mother automatically has Parental Responsibility and the Father named on the birth certificate also does if the child was born after December 2003. If the child was born before this date the Father does not have Parental Responsibility. Parental Responsibility can be granted to a Father through a Parental Responsibility Agreement or Court Order.

Spousal Maintenance and Pensions

Unlike married couples, if your relationship breaks down neither person may make a claim against the other for a share of a pension or to receive spousal maintenance.

Inheritance

As an unmarried couple the rules of inheritance mean that your partner will not inherit your estate automatically. It is important therefore to for each of you to record your wishes in a will.

Cohabitation Agreement

It may assist, particularly if there are other assets than your home to consider, such as additional properties, a business, joint accounts or joint liabilities, to enter into a cohabitation agreement. This would set out your intentions as a couple and the consequences should the relationship breakdown.